Doctors, hospitals concerned about hefty malpractice awards

Andrea K. Walker, The Baltimore Sun

Maryland's medical community is concerned about the potential fallout from two multimillion-dollar malpractice judgments awarded by Baltimore juries to families who blamed local hospitals where their babies were delivered for their children's disabilities.

Doctors and hospital officials worry that juries, particularly in Baltimore City, are making decisions out of sympathy for sick patients rather than science. In the process, physicians said, these decisions may create an unrealistic benchmark for what future juries are willing to award — and lawyers are willing to seek — in such cases. Such rich awards also could drive up the cost of malpractice insurance for doctors, which likely would be passed along to patients.

The medical community's fears are unfounded, countered Gary Wais, a partner in the Pikesville firm that represented the families in both cases.

"They are trying to beat the drums of fear," said Wais, calling it "sour grapes."

Doctors and hospitials must be held accountable for their errors, plaintiffs attorneys argue.

A jury on Tuesday awarded $21 million to a Glen Burnie couple whose now-9-year-old son was born prematurely with cerebral palsy at Harbor Hospital in 2002.

In June, a jury handed down one of the largest medical malpractice verdicts in state history, awarding $55 million to a Baltimore couple whose son was born with cerebral palsy at Johns Hopkins Hospital in 2010. The amount is twice as high as the $30 million cap state law puts on such awards.

The combined amounts are more than the $72.2 million awarded in Maryland medical malpractice lawsuits in all of 2011, according to the National Practitioner Data Bank.

Hopkins and MedStar, among the region's largest hospital systems, maintain they were not at fault in either case and are appealing the verdicts.

Such large, back-to-back awards are rare, explained Wais, of Wais, Vogelstein, Bedigian & Arfaa. Most malpractice cases are settled out of court and never even make it to trial, he and others said.

Between 2001 and 2011, $890.1 million in medical malpractice claims were awarded in Maryland, according to the National Practitioner Data Bank.

A 2010 survey done for the American Medical Association found that more than 60 percent of doctors had been sued by the time they were 55, and among obstetrician/gynecologists and surgeons it was 70 percent. Among the suits, 65 percent were dropped or dismissed and 5 percent went to trial. Defendants prevailed 90 percent of the time.

Doctors and hospitals said they are bracing for a trickle-down effect of more lawsuits and rising malpractice insurance rates because of the recent judgments. They argue malpractice costs could become so burdensome that doctors decide to stop working in certain locations and specialties.

"Hospitals who provide medical care to high-risk patients — particularly obstetrical patients — are questioning how much longer they will be able to continue providing that care in Baltimore City," said Mary Lynn Carver, a spokeswoman for the University of Maryland Medical Center, in an e-mail.

A 2004 report by Public Citizen found no evidence that doctors leave a state because of malpractice costs.

The AMA and the American Tort Reform Association acknowledge that there are no statistics to show that higher premiums, resulting from large jury awards, push doctors out. But both say there is anecdotal evidence of the impact.

"It's reasonable for physicians and hospital administrators to be concerned about large awards," said Darren McKinney, a spokesman for the tort-reform group. "Doctors do react. If you're a young doctor, you may move, if you're older you may say it's been long enough. But I doubt they tell anyone it's because of their malpractice premiums. So there is no database to prove that it happens. But it most certainly does."

Karl P. Riggle, a general surgeon in Hagerstown who has been outspoken in the past about malpractice costs, said doctors in rural areas like his already send patients with complicated cases to other hospitals rather than risk getting sued.

"I sympathize with the victims, but these types of cases are detrimental," said Riggle, administrative director of trauma at Meritus Medical Center in Hagerstown. "It drives up the cost to do medicine and causes physicians to take precautions in terms of being willing to take care of these kinds of patients."

The issue of malpractice costs last flared in 2004 when insurance rates skyrocketed 33 percent after some hefty judgments, prompting the General Assembly to create a special fund to provide relief. Twenty-six states have sought to soften the blow of litigation by capping noneconomic damages, typically at $250,000, according to the AMA. Maryland's cap is somewhat higher.

The size of the latest awards is raising new questions now about the costs and whether doctors and hospitals can afford to pay out such large sums.

Mark Seigel, a Montgomery County doctor who is chairman of the Maryland section of the American Congress of Obstetrics and Gynecology, said lawyers representing victims can exaggerate the cost of caring for the victims to create higher payouts.

"Our insurance is very expensive in obstetrics and gynecology, and the reason for that are the big awards," said Siegel, also on the board of MedChi, Maryland's medical society. "If you ever get into one of these cases it's all about the economics. They overestimate what the expenses are. It's kind of like padding the bill."

It's very costly, malpractice attorneys counter, to care for children with disabilities and that care often must continue throughout their lives.

Yet Seigel and other doctors said malpractice lawyers play to jurors' emotions.

"It is very easy for jurors to say, 'We don't know what happened, but we think it's fair for the child to have some money to have a better life,'" Seigel said.

Research may back that claim. Studies have shown that, in general, jurors in Baltimore tend to be more sympathetic to plaintiffs in all cases, said Greg Dolin, co-director of the Center for Medicine and Law at the University of Baltimore School of Law. The jury pool may be of a lower demographic and may relate better to the victim than to the hospital executive, said Dolin, who did not follow the two cases.

Cases such as these don't bind other courts, as do Supreme Court decisions, but they can influence future decisions.

"The more verdicts like this that come in it becomes more of a benchmark," Dolin said. "It's not binding, but lawyers can reference what others have been awarded and ask for similar compensation."

The parents from Glen Burnie claimed their son Jaylan Norfleet was oxygen-deprived while still in his mother's womb and that MedStar doctors should have performed a Caesarean section rather than allow a prolonged vaginal birth.

In the Hopkins case, Enso Martinez and his wife, Rebecca Fielding, also claimed their son became oxygen-deprived in his mother's womb and that medical staff should have performed a Caesarean section sooner than they did. The birth had started at home, overseen by a midwife whose license was later suspended, but the mother was rushed to Hopkins because of complications. The judge in that case excluded evidence about the midwife's license, saying it would prejudice the jury.

Malpractice attorneys said they don't expect the cases to have widespread ramifications.

"I don't think two verdicts make a pattern," said Baltimore malpractice attorney Andrew G. Slutkin. "I don't think you are going to see people run to the courthouse to pursue claims. Claims are either legitimate or they're not."

Public Citizen's study found that lawsuits don't affect malpractice insurance rates. The consumer group's report recommended states take a closer look at why insurance companies raise rates, arguing that tort reform just takes away the legal rights of patients.

In the recent cases, Wais noted, his team had several medical experts back up the families' claims. Wais said he told jurors in closing arguments not to let their sympathy for the child cloud their judgment.

The attorney representing MedStar maintains that jurors ignored the scientific facts. He said the family's lawyers wouldn't settle because they were banking on the sympathy of a Baltimore jury.

"The verdict was against all objective evidence that nothing happened at birth," said John Fitzpatrick, a MedStar attorney with Colorado-based law firm Wheeler Trigg O'Donnell. "The jurors did not look at the evidence objectively."

Doctors and hospitals say that perhaps there should be more tort reform.

The University of Maryland's Carver said the verdicts subvert the cap on noneconomic damages in Maryland. She also said the verdicts "demonstrate a failure of the courts to fulfill their responsibility as gatekeepers by permitting evidence with no basis in fact or science to go to juries."

"We are greatly concerned by the recent verdicts and will be asking the legislature to look at remedies," Carver said.

Most doctors acknowledge that victims of doctor error should be awarded. But complications happen in medicine, said Gene M. Ransom III, CEO of MedChi.